Affirmed and Memorandum Opinion filed March 12, 2015.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00479

- CR

ROBERT ANDREE BAXTER , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 180th District Court

Harris County, Texas Trial Court Cause No. 1375893

M E M O R A N D U M O P I N I O N Appellant, Robert Baxter, waived his right to jury trial and plead ed guilty to possession of a controlled substance . He was sentenced by the trial court to 180 days’ confinement. In one issue, appellant contends the trial court erred by denying his motion to suppress

. We affirm

.2 I. B ACKGROUND Appellant was charged by indictment with possession of a controlled
substance . Appellant filed a motion to suppress evidence he claimed was illegally obtained. The parties entered into a Stipulation of Evidence. When viewed in the light most favorable to the trial court’s ruling, the evidence re veals the following progression of events.

Lt. Crowson of the Houston Police Department observed appellant driving from one hotel to another in an area known for narcotics, prostitution , and high crime. Appellant was in the company of a known prostitute. Lt. Crowson asked the hotel manag ement to identify appellant. Upon inquiry, Lt. Crowson discovered appellant had an outstanding municipal warrant, and he called for an unmarked unit to observe appellant’s activity. Two plain clothes Houston P olice Department officers, Nguyen and Ryan, arrived in an unmarked unit. Officers Nguyen and Ryan observed appellant ’s action s and found them to be consistent with involvement in transactions involving narcotics and prostitution.

Lt. Crowson and Officers Satterwhite and Hartman proceeded to the hotel where appellant was located in order to serve the arrest warrant. When appellant answered the door, the officers smelled a c hemical odor emanating from the room
“consistent with PCP.” Appellant was arrest ed , handcuffed, an d placed in the back
seat of Officer Satterwhite’s vehicle. Lt. Crowson then called Officers Carroll and Duncan to speak with appellant and ask for his consent to search the hotel room.
Appellant was removed from the back of the vehicle before Officer Duncan spoke with him. Officer Duncan advised appellant that the officers were not focused on the arrest warrant, and that he would be released if he consented to a
search of the hotel room and no narcotics were found. Officer Duncan allowed appellant to read the consent form and explained that appellant was not required to3

give his consent. Appellant was asked once to sign the consent form, and the conversation regarding consent lasted tw o to three minutes. None of the other police officers asked appellant to sign the form. A t no time did any of the officers have their weapons drawn, nor did they use force on appellant. Officers Carroll and Duncan were approximately three feet from appe llant as they spoke with him;
Lt. Crowson and Officers Satterwhite and Hartman were about 15

- 20 feet from appellant ; and Officers Ryan and Nguyen were approximately 15 yards from appellant.

The consent form signed by appellant s tates that he was informed o f his constitutional right to require that the officers obtain a search warrant and his right to voluntarily consent to a search. 1 The consent form also recites that appellant gave consent “ freely and voluntarily and without threats or promises of any kin d and is given with my full and free consent. ”

The trial court signed findings of fact and conclusions of law in support of
its determination that consent was voluntary. The findings set forth the facts
outlined above. Specific t o consent , the trial court found that police officers informed appellant the main purpose of the ir investigation was to determine if
there were narcotics in the hotel room and t hey advised appellant he would be released “if he signed the Voluntary Consent for Se arch and Seizur e form and no narcotics were found in his hotel room.” (Emphasis in original). The trial court further found that appellant was forty

- six years old at the time he signed the
consent form.

The trial court concluded the arrest was lawful, the arresting off icers had probabl e cause for the arrest, there was clear and convincing evidence that consent

was “ voluntarily given, positive and unequivocal, ” the conditional promise did not

1 The handcuffs were removed to allow appellant to sign the form.4

render the consent invalid, and the evidence obtained pursuant to the lawful se arch
was admissible.

II. A NALYSIS
In his sole issue , appellant challenges the trial court’s denial of his pre

- trial motion to suppress. We review a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard

. Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman v. State , 955 S.W.2d 85 , 88

– 89 (Tex. Crim. App. 1997) )

. W e give almost total deference to the trial court’s determination of historical facts that depend on credibility and demeanor. See Kelly v. State , 331 S.W.3d 541, 547 (Tex. App.

— Houston [ 14th Dist.] 2011, pet. ref’d). Where a trial judge makes express findings of fact, we view the evidence in the light most favorable to his ruling and determine whether the evidence supports
these factual find ings. See State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review de novo the trial court’s application of the law to the facts. See
Wiede v. State , 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).
Whether a suspect has given voluntary consent to search must be established by clear and convincing evidence. See Meekins v. State , 340 S.W.3d 454, 460 (Tex. Crim. App. 2011). The ultimate question is whether the person’s “will ha[s] been overborne and his capacity for self

- determination critically impaired,” such that his consent must have been involuntary. Id

. (citing United States v. Watson , 423 U .S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) )

. The trial court must review the totality of the circumstances surrounding the statement of consent to determine whether consent was voluntary.
The consent to search must be positive and unequivocal and not the product of duress or coercion either express or implied. See Reasor v. State , 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Voluntariness is determined by a considera tion5

of the following factors: the defendant’s age, education, and intelligence; the length of detention; any constitutional advice given to appellant; the repetitiveness of questioning; a nd the use of physical punishment. Id .; see also Cadoree v. State , 331 S.W.3d 514, 520 (Tex. App.

— Houston [ 14th Dist.] 2011, pet. ref’d).
The standard is objective reasonableness

— what the typical reasonable person would have understood by the exchange b etween the officer and the suspect

. See Valtierra v. State , 310 S.W.3d 442, 449 (Tex. Crim. App. 2010). An officer’s testimony that consent was given voluntarily can be evidence sufficient to establish that the consent was voluntary. See Johnson v. Stat e , 226 S.W.3d 439,
443 (Tex. Crim. App. 2007).
Appellant argues consent was not voluntary because the State proffered no evidence at the hearing addressing his intelligence or education ; there w ere several officers present ; appellant was arrested and handcuffed ; he did not receive
Miranda warning s ; 2 and he was promised he would be released from custody if no drugs were found in his hotel room. Yet, in the Stipulation of Evidence, appellant
does not contend he was unable to read the consent form, and his signature appears
on the form . There is no evidence of any coercion , threats , or harassment by the police officers . A ppellant’s statement that he could see the officers in the room before he signed the consent form did not constitute evidence of such factors

. Finally, appellant ’s assertion that he was “coerced” into signing the consent form because he was “promised” he would be released is inconsistent with the officers’

statements that he was “promised” he would be release d only if no narcotics were
discovered. The trial court’s finding stated : Officer Duncan informed the Defendant that the main purpose of the investigation was to determine whether the Defendant had narcotics in

2 Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).6

his hotel room, stating that the municipal warrant was not their focus, and that the Defendant would be released if he signed the Voluntary Consent for Search and Seizure form and no narcotics were found in his hotel room. (Emphasis in original).
We afford great deference to the trial court’s factual finding believing the officer’s testimony

. See Cadoree , 331 S.W.3d at 519 (citing Guzman , 955 S.W.2d at 89).
Viewing the record and all reasonable inference s in the light most favorable to the trial court’s ruling, we conclud e the record contains clear and convincing evidence supporting the trial court’s ruling that appellant’s consent was voluntary.
See Reasor , 12 S.W.3d at 818; see also Johnson , 68 S.W.3d at 654 (concluding defendant’s consent was voluntary even though in h e was in custody and not provided Miranda warnings). We overrule appellant’s sole issue and w e affirm the trial court’s judgment

.

/s/ John Donovan Justice

Panel consists of Justices Boyce, Jamison, and Donovan. Do Not Publish

— Tex. R. App. P. 47.2( b).